910 F.

2d 768

UNITED STATES of America, Plaintiff-Appellee,

v.
Samuel SCROGGINS, Defendant-Appellant.
No. 89-8910
Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.
Sept. 5, 1990.

Sheila Tyler, Federal Defender Program, Inc., Atlanta, Ga., for defendantappellant.
F. Gentry Shelnutt, Jr., Asst. U.S. Atty., Atlanta, Ga., for plaintiffappellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before TJOFLAT, Chief Judge, KRAVITCH and JOHNSON, Circuit
Judges.
PER CURIAM:

Defendant Samuel Scroggins appeals the district court's sentence of two years
incarceration imposed for his violation of his supervised release. Because the
sentence was not plainly unreasonable, we affirm the court below.

In January of 1988, defendant pled guilty to theft of public money, in violation

of 18 U.S.C. Sec. 641, for breaking into and stealing money from postal stamp
vending machines. He was sentenced under the Sentencing Guidelines to one
year in prison and a subsequent term of two years supervised release.1 The
conditions of the supervised release required that Scroggins, inter alia, not
commit another crime, report to his probation officer monthly, pay restitution,
and participate in a substance abuse program.

While Scroggins was serving his supervised release term, his supervision
officer alleged that Scroggins had violated the conditions listed above and
requested that the court consider action regarding the supervised release. At the
hearing to revoke the supervised release, a postal inspector testified that
Scroggins had admitted to breaking into and stealing $3000 from several postal
vending machines while on supervised release. The court then revoked the
supervised release and sentenced Scroggins to a two-year prison term.

The issue of how a court should apply the Sentencing Guidelines when
determining a sentence upon the revocation of a supervised release is of first
impression in this circuit. A sentence imposed for an offense for which there is
no applicable guideline should only be reversed if the sentence is plainly
unreasonable. 18 U.S.C. Sec. 3742(e)(4).2 The guidelines provide only that the
court must revoke supervised release upon finding a violation of the release
conditions based on new criminal conduct and may revoke supervised release
for any other violation of the supervised release. U.S.S.G. Sec. 7A1.3. There is
no specific provision for a new guideline calculation upon revocation. The
governing statute does provide, however, that a court may, after considering the
factors in 18 U.S.C. Sec. 3553,revoke a term of supervised release and require
the person to serve in prison all or part of the term of supervised release without
credit for time previously served on postrelease supervision, if it finds by a
preponderance of the evidence that the person violated a condition of
supervised release.

18 U.S.C. Sec. 3583(e)(3). The factors listed in section 3553 include: the nature
of the offense; the need to deter criminal conduct, to protect the public, and to
provide defendant with appropriate treatment; any guideline range for
sentencing; guideline policy statements; and avoidance of unwarranted
disparities.

The defendant focuses his argument on the reference in section 3553 to the
guideline sentencing range. Specifically, the section lists as a factor the
"sentencing range established for the applicable category of offense committed
by the applicable category of defendant as set forth in the guidelines that are
issued by the Sentencing Commission." 18 U.S.C. Sec. 3553(a)(4). Although
defendant admits that the Sentencing Commission has instituted no guidelines
governing the sentencing upon revocation of a supervised release, he argues
that this reference to the guidelines requires a consideration of offense level and
criminal history based on the guidelines which, by his calculations, result in a
six month sentence instead of the two years determined by the court. The
defendant claims that the court should have added the original 1988 conviction

to his criminal history score under the guidelines, which would raise his score
from 4 to 6 and move him from Category III to Category IV. This adjustment
would produce a sentence range of 18 to 24 months. Defendant then argues that
since he received the lower range in the original sentence, he should receive the
lower range now, and that he should receive credit for the 12 months he spent
in prison on the original sentence. This results in a 6 month sentence.
7

Defendant's application of the guideline method, however, is not based on any

particular guideline provision for the violation of supervised release because, as
he concedes, there is no such provision. He admits that because there are no
applicable guidelines, the court should apply section 3583. He then asserts, that
as that section refers the court to the guidelines for consideration in sentencing,
the court should invent a specific guideline instead of applying the body of
section 3583.

In essence the defendant wants his situation treated as if he had been convicted
of another crime, not as a violation of supervised release. Defendant was not
convicted of another crime. He violated his supervised release and Congress
has outlined the appropriate sanction for such a violation. As the Ninth Circuit
has recently noted, "section 3583 and Guidelines 7A1.3 delineate all of the
alternatives a court has when a person violates a condition of his supervised
release." United States v. Behnezhad, 907 F.2d 896, 897 (9th Cir.1990).

The district court complied with the statute. There are no applicable guidelines,
and thus the court applied section 3583. The term of the defendant's supervised
release was two years. Section 3583 permitted the court to sentence the
defendant to "all or part" of the term of supervised release. The court sentenced
the defendant to two years in prison, with no credit for time served on the
supervised release, after finding violations of the terms of the release. This
sentence was not plainly unreasonable. AFFIRMED.

The sentence was affirmed on appeal. United States v. Scroggins, 880 F.2d
1204 (11th Cir.1989)

The statute reads, in pertinent part:

(e) Consideration.--Upon review of the record, the court of appeals shall
determine whether the sentence-(4) was imposed for an offense for which there is no applicable sentencing
guideline and is plainly unreasonable.

18 U.S.C. Sec. 3742.